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2003 DIGILAW 177 (KER)

P. Sankaranarayanan Nair v. The State of Kerala

2003-03-05

N.R.HARIHARAN NAIR

body2003
Judgment :- The petitioners herein are residents of Chalavara in Ottapalam Taluk, Palakkad District. Their grievance is that though the 5th respondent Grama Panchayat passed resolution to initiate steps for acquisition of land, they are not pursuing the matter. The prayer, therefore, is to direct respondents 1 to 4 who are the State and its officials in the Revenue Department, to take prompt, effective and immediate steps to facilitate implementation of Ext.P1 resolution and to command the third respondent Tahsildar Ottapalam to depute the Taluk Surveyor, Ottapalam to survey the land mentioned in the resolution. 2. Even though on counter affidavit is filed, the Panchayat supports the petitioners. 3. The learned Government Pleader submitted that though a resolution was passed, no step for acquisition has been taken insofar as the required application in Form No.2 has not been sent up. According to him, the petitioner’s present grievance is too premature and the question of surveying the property arise only after the land acquisition steps are properly initiated. 4. In the course of the original petition, the 6th respondent who is one of the co-owners of the property sought to acquired for the purpose got himself impleaded. According to him, the original petition is mischievous and the attempt of the petitioners is to deprive the owners of the right to use it for legitimate purposes and to cause difficulties to them in the normal enjoyment of the property. In this regard, it is pointed out that even attempt to construct a compound wall around the property was defeated through obstruction caused by the Panchayat President himself along with others, which resulted in registration of crime No.22/2003 of Cherpulassery Police Station. The failure to implead the actual owners in the proceedings is said to be fatal to the result of the original petition. It is also pointed out that suits are pending in the Munsiff’s Court, Ottapalam, with regard to the property in question and that the Panchayat has already caused immense damage to the owners of the property through illegal and premature notification and letters addressed to the Sub Registrar, Tahsildar etc. 5. It is not at all in dispute that land acquisition proceedings, stricto sensu, have not been commenced at all. 5. It is not at all in dispute that land acquisition proceedings, stricto sensu, have not been commenced at all. The question now is only whether the District Collector and Tahsilder should facilitate preparation of necessary plan with regard to the property in question and provide it to the Panchayat at this stage. 6. Rule 3 of the Kerala Panchayat (Acquisition and Transfer of Immovable Properties) Rules, 1963, provides that the Panchayat shall not acquire any immovable property unless the various conditions stipulated in the Rule are satisfied, the first among them being that the property should be approved by the District Panchayat Officer as suitable for the purpose for which it is intended. Admittedly, the Panchayat has not obtained the approval of the District Panchayat Officer so far. But then it has a contention that even for getting the approval, the precise identity of the land to be acquired has to be fixed and the primary thing that has to be done in this regard is the measurement of the property and preparation of a plan. It is stated that the Panchayat is now only at that stage. 7. The form in which Panchayat is to move the District Collector for land acquisition is Form No.2 prescribed under Rule 4(1) of the Land Acquisition (Kerala) Rules, 1990. The said form requires various details including the survey No., the extent of land to be acquired etc. I find considerable merit in the contention of the Panchayat that even for seeking permission of the District Panchayat Officer or for sending requisition in Form No.2, it is first of all necessary to measure out the land and prepare a sketch. The petitioners have approached this Court mainly for giving necessary direction in this regard only. 8. Pursuant to Ext.P1 resolution to establish a public market, a commercial complex, a car stand and an open air theatre in the land in question having approximate extent of 90 cents, the Panchayat approached the Tahsildar, Ottapalam through Ext.P4 letter written on 7.9.2001 seeking directions to the Taluk Surveyor to measure out the property. The learned Government Pleader has not convinced me that any reply was sent to this reasonable request. 9. The learned Government Pleader has not convinced me that any reply was sent to this reasonable request. 9. The fact that there is a proposal to acquire the land and that request was made to the Village Officer to provide the plan was brought to the notice of the District Collector is clear from Ext.P7. There does not appear to be any reply thereto. The request of the Panchayat to get a plan prepared is quite legal and there is definite failure to discharge the lawful functions of the Revenue Authorities which is revealed from the lethargy on their part to comply with the request of the Panchayath even the primary step necessary for initiating land acquisition. 10. In the circumstances, I am satisfied that this is a fit case where the power of judicial review can be invoked to direct the respondents 2,3 and 4 to ensure that the land mentioned in Exts.P3 and P4 letters is measured out and a survey plan prepared and provided to the Panchayat. This will be done within a period of two months from the date on which a copy of this judgment is produced before the 2nd respondent. The Panchayat is bound to provide necessary co-operation in the matter of required measurements and it will be within the rights of the 2nd respondent even to get police aid in case there is obstruction to carrying out the measurement forthcoming from the 6th respondent, his men or for that matter, from any other person.